Watkinson v. Watkinson. 67 Eq. ADEL LOUISE WATKINSON V. HOWARD WATKINSON. [Submitted March 21st, 1904. Decided March 29th, 1904. 1. A decree of divorce, made in a cause where the defendant was not within the territorial jurisdiction of the court, and was not served with process and did not appear, and the complainant had no domicile within the territorial jurisdiction, is absolutely void and incapable of being ratified by the acquiescence of the defendant. 2. A decree of divorce against a defendant wife, who does not reside within the jurisdiction and who does not appear, based upon her adultery, which had been fully and completely condoned by the husband, but which condonement was concealed from the master, will be set aside on a bill of review by the wife. 3. A delay of about four years in bringing a bill to review a decree of divorce held not to be fatal where the wife was poor, in ill health and ignorant of her rights, and no copy of the decree had been served upon her or other positive information brought home to her until more than a year after the decree was entered. Mr. James Steen and Mr. William D. Tyndall, for the petitioner. Mr. John H. Backes and Mr. Willis P. Bainbridge, for the defendant. PITNEY, V. C. This is a bill of review filed by Adel Louise Watkinson against her husband, Howard E. Watkinson, to review and set aside a decree of divorce obtained by said Howard against her in this court on the 11th of December, 1896, and filed on the 17th of December, 1896. The ground of the decree was adultery with one Rebholz. That decree is attacked by the present bill on two grounds: 1 Robbins. Watkinson v. Watkinson. First. That after the adultery charged in the bill and after the commencement of the husband's suit, and after the service upon his wife of process, and before decree, the husband returned to the wife and cohabited with her, and led her to believe that he had abandoned the suit, thus bringing the case within. the principle of Clayton v. Clayton, 59 N. J. Eq. (14 Dick.) 310. Second. That at the time the suit of the husband against the wife was commenced and carried on, and at the time the decree was signed, neither the complainant nor the defendant therein were residents or citizens of the State of New Jersey, and that the complainant herein did not appear in said suit, was not served with process in the State of New Jersey, but was proceeded against as an absent defendant and did not appear, and that the defendant herein imposed and practiced a fraud upon this court in swearing that he was a resident of New Jersey, and that for that reason the said decree is absolutely void for want of jurisdiction in this court over the person of the complainant herein. What may be termed the admitted, or at least incontestable, facts in the case, are as follows: Complainant and defendant were married in the city of Trenton, in November, 1889, and the parties lived there together until on or about the 1st of December, 1895. Four children were born to complainant during that time, the youngest in the month of April, 1895. Of these, two have died. The youngest was disowned by the defendant, and, according to his own account, he had good and sufficient reason to believe, at the time it was born, that he was not its father, and, as he swears, the complainant herein so admitted. Nevertheless, he continued to cohabit with her as his wife from that time forward, until about the 1st of December of the same year. He was and had been engaged in the business of a local expressman, but met with financial disaster in the fall of that year and his property was seized by the sheriff on a foreign attachment and his business entirely broken up. Watkinson v. Watkinson. 67 Eq. There is no evidence to show that he ever had the least business of any permanent character in Trenton after that time. On or about the day last mentioned (December 1st, 1895) he packed all his furniture and sent it to his wife in the city of New York. He also gathered out of his means $500 and sent it to her. She rented a flat in One Hundred and Thirtyfourth street, New York City, and established herself therein with her children and lived there, without her husband, until some time in January, 1896. About the first of that month, according to the husband's account, and toward the last of the month, according to the account of one Vogler, his witness in the former suit, he and that witness went together to his wife's flat in New York City, at night, and found Rebholz, her paramour, in the house, in her apartments; he had, manifestly, just left her bed. Defendant charged his wife with adultery with Rebholz, and she admitted it, so he swears. Notwithstanding that he knew that Rebholz was the father of the youngest child, and that he had then and there caught him almost in the act of adultery with his wife, he at once resumed cohabitation with her, and lived with her as her husband until the latter part of the month of May, 1896, when he, as he swears, obtained possession of a large number of letters written by Rebholz to his wife, and all dated, as I read the record, in the year 1894. The letters, I must presume-I declined to read them-tend strongly to show the improper relations which had existed between Rebholz and defendant's wife. He then left his wife and went to Trenton and instituted the suit in question, wherein the bill was filed on June 13th, 1896. The ordinary proceedings were had against the wife and order of publication against her, as an absent defendant, was made returnable on August 31st, 1896. The affidavit of the solicitor, Mr. Bainbridge, is that he handed a copy of the usual printed notice to the complainant on the 9th day of July, at her place of abode, 976 East One Hundred and Thirty-fourth street, New York City. No other service was made upon her. After his first visit to Trenton to institute these proceedings, 1 Robbins. Watkinson v. Watkinson. the husband, as he swears, went back to his abode in New York and packed up his personal belongings, trunk, &c., and moved to Trenton. His father and mother lived in Philadelphia. He stopped in the city of Trenton for a few days, and then, about the 1st or 4th of July, went out into Hunterdon county and stopped with two gentlemen by the name of Gary, who kept a little country store at a place called Reaville. He engaged in no business, so far as appears, unless it was, occasionally, to render them a little assistance about their store or about the premises or farm. He remained there until the last of September. His wife did not appear to the suit. Order of reference was made to Master Aitkin, and the hearing came before him on the 9th day of October, on which day the husband was sworn, and again on the 10th, on which day his father and the witness Vogler were sworn, and again on the 16th, on which day two other witnesses were sworn. About the last of September, or the first of October, the wife moved from the flat in One Hundred and Thirty-fourth street to one in One Hundred and Thirty-eighth street, where she lived until she broke up housekeeping, the next January (1897). The husband, according to his account, shortly after the taking of the testimony before the master, went to his father's house, in Philadelphia, and stayed there until Thanksgiving. According to the wife's account, he came to New York and assisted her in moving from One Hundred and Thirty-fourth street to One Hundred and Thirty-eighth street and in arranging her furniture in the latter place, and lived with her as husband and wife until the day before Thanksgiving. According to both parties, he did not live with her in her apartments after that day. According to her account, he lived with her as her husband in the month of July, 1897, for about a week, at her mother's flat in New York City, while her mother and some other members of her mother's family were absent at the seashore. He swears that on Thanksgiving day of 1896, while he was stopping at his father's house in Philadelphia, he received a telegram from a firm engaged in business as private detectives Watkinson v. Watkinson. 67 Eq. in New York City, asking him to come there immediately, and that he went and engaged in the work of a private detective as an employe of that firm; that he had his lodging and home in New York City for three years thereafter, and was all that time working there. Although he swears that he spent the time between October 16th, 1896, and Thanksgiving of that year in Philadelphia, circumstances appear in the case tending to show that he was more or less during that time engaged in work as a private detective for the New York firm. On this statement of the undisputed facts in the case it would seem that the husband had no residence or domicile in the State of New Jersey at the time he was carrying on his suit here for divorce. He certainly, for six months before the suit was brought, had abandoned his residence in New Jersey, and had no business or occupation here, and had been living for at least five months in the ordinary manner with his wife in the city of New York. There is not a particle of evidence to warrant the idea that he came to the State of New Jersey in May, 1896, for any other purpose but to procure a divorce from his wife, and there is no evidence to indicate that he had the least intention to remain and make his home here. Everything in the case tends to show that he had the intention to return to New York City after he got his divorce. Whatever of residence he had in the State of New Jersey during the summer of 1896 was of the most temporary and ephemeral character. He had no business or employment here. The very recent case of German Savings and Loan Society v. Dormitzer, 192 U. S. 125, is directly in point. That case affirms the same case in 23 Wash. 132. So much for the lack of jurisdiction in this court. Counsel for defendant, in his written argument, complains that this matter of want of jurisdiction was not given prominence by the complainant either in her bill or on the hearing of the cause. The bill distinctly charges that prior to and during the pendency of the former suit the defendant was residing in the State |